Amdist angry challenges to "fight the ban on affirmative action" by activists the Federal Appeals Court in San Francisco ruled yesterday by a 3-0 vote that Proposition 209 passed by voters in November does not "cause irreparable harm to women and minorities, and does not "violate the constitutional rights of women and minorities." The amendment to the California Constitution bars the state from giving preference to women and minorities in contracts, hiring and college admissions.

``We must conclude that, as a matter of law, Proposition 209 does not violate the United States Constitution,'' wrote Judge Diarmuid F. O'Scannlain of Portland, Ore., in the court's decision.

``There is no threat of irreparable injury or hardship to tip the balance in plaintiffs' favor,'' O'Scannlain concluded. Judges Edward Leavy, also of Portland, and Andrew J. Kleinfeld of Fairbanks, Alaska, joined in the opinion.

Harriet Chiang, The San Francico Chronicle Legal Affairs writer noted that "The decision is scheduled to take effect in 21 days. But attorneys representing a coalition of women, minorities and civil rights groups said they will appeal.

"Such a move would automatically prevent Proposition 209 from taking effect and set the stage for a landmark battle before the U.S. Supreme Court, lawyers on both sides of the case said yesterday.

Governor Pete Wilson said at a news conference in Sacramento ``Today is a victory for every Californian, for every man, woman and child who asks only that he or she be treated fairly and equally under the law and be judged by their integrity and their character.''

Appearing with Wilson was his longtime friend and ally Ward Connerly, a University of California regent and leading opponent of affirmative action programs.

``It's a nail, it's a spike, it's a dagger in the heart of preferences,'' Connerly said.

Despite any future appeals, he said, ``surely we will get to where Dr. (Martin Luther) King (Jr.) wanted to be when he climbed to that mountaintop. Today is another step toward that mountaintop for us.''

The two authors of the measure, Thomas Wood and Glynn Custred, joined in the celebration. `

`The initiative simply prohibits governmental discrimination against anyone on the basis of race or sex,'' said Wood in a statement. ``A measure like that is obviously constitutional.''

Lawyers for the coalition of groups challenging the law said yesterday that they would ask the 20-judge appeals court for a rehearing. If their request is granted, it will go before a special 11-judge panel.

The Chronicle reported near consternation among special interest groups. Ed Chen, attorney for the American Civil Liberties Union said the law " will have a devastating impact on women and minorities. The court got the law completely wrong.''

Eva Paterson of the Lawyers' Committee for Civil Rights was quoted as calling the decision "Misguided."

The three-judge panel overturned a decision in November by U.S. District Court Judge Thelton Henderson, who blocked enforcement of the law, finding that it probably violated the constitutional rights of women and minorities. After he blocked the law, Henderson, who was appointed to the federal bench by President Jimmy Carter, was accused by Proposition 209 proponents of basing his decisions on personal bias.

In the opinion yesterday, the three-judge panel accused Henderson of relying on an erroneous legal premise and thwarting the will of the voters.

``A system which permits one judge to block with the stroke of a pen what 4,736,180 state residents voted to enact as law tests the integrity of our constitutional democracy,'' O'Scannlain wrote.

In his decision blocking enforcement of the law, Henderson relied on two U.S. Supreme Court decisions striking down laws that appeared to be race-neutral but were in fact discriminatory in their enforcement.

But the appeals court rejected these two decisions, saying that they were ``irreconcilable'' with other high court rulings.

Tim Golden, a reporter for the The New York Times noted in an article this morning that "The strongly worded ruling went considerably further than either side had expected. And though it may prove to be only one turn in a lengthy and complex legal battle over affirmative action, supporters of the initiative said they expected the decision to have an immediate impact on the widening national campaign to end decades of race and sex preferences in government hiring, contracting and education.

"President Clinton, who had ordered the Justice Department to join the court fight against the initiative, seemed to concede on Tuesday that an important battle had been lost. At a White House news conference, he said supporters of affirmative action would have to 'regroup and find new ways to achieve the same objective.'

"'I believe if states are precluded from trying to take appropriate steps that are not quotas and that do not give unqualified people a chance to participate in whatever it is -- economic or educational life -- but do recognize the disadvantages people have experienced, I think that will be a mistake,' Clinton said.'

The decision to overturn Proposition 209 and the prior decision to declare it unconstitutional highlight the growing tendency of the part of judges to interpret the law based on their personal bias. Thelton Henderson, is a Carter appointee who once served on the board of the American Civil Liberties Union of Northern California, which helped argue the case. Henderson was considered sufficiently liberal by supporters of the initiative that they focused much of their legal energy on trying to have him removed from the case.

On the other hand, O'Scannlain and one of his colleagues, Edward Leavy, were both appointed to the bench by President Ronald Reagan. The third judge in the case, Andrew Kleinfeld, is a Bush appointee who is viewed by some legal experts as one of the most conservative members of the federal judiciary.

Lawyers on both sides had accused their adversaries of "shopping" for sympathetic judges. But proponents of the ballot measure could scarcely believe their luck when their request for an emergency order suspending the injunction came before a randomly assigned three-judge panel that appeared to be considerably to the right of the 9th Circuit's ideological center.

The California Civil Rights Initiative, as the affirmative-action measure is formally called, sought to bar the state government from bringing racial or sex considerations to bear in the decisions it makes in giving out jobs, letting contracts or granting admission to state universities. The measure was approved on Election Day with 54 percent of the vote.

In granting a temporary restraining order on Nov. 27 to opponents of the initiative, Henderson argued that there was a "strong probability" that it might be unconstitutional. In issuing the preliminary injunction on Dec. 23, he said it would violate the equal-protection clause of the Fourteenth Amendment because it would eliminate only those programs that benefit women and minorities. By contrast, the advantages sometimes given to, say, Army veterans who apply for state benefits would be preserved.

The 9th Circuit rejected that argument out of hand, saying that the initiative addresses matters of race and sex "in a neutral fashion."

"As a matter of 'conventional' equal protection analysis, there is simply no doubt that Proposition 209 is constitutional," O'Scannlain wrote.

The appeals panel had originally been expected to rule on the motion for emergency relief, and then send the appeal to a separate group of randomly selected judges for fuller review. Instead, the motions panel kept the case itself.

"This ruling on Tuesday went well beyond the narrow question of whether Henderson had acted properly in granting the injunction, and seemed to rule out the possibility that even if the injunction was lifted, the case would be sent back to the District Court for a trial on the ballot measure's merits," The NY Times article observed

"The only issue before the 9th Circuit seemed to be whether the preliminary injunction was wrongly granted," said Erwin Chemerinsky, a professor of constitutional law at the University of Southern California. "But the court went ahead and decided on the constitutionality of Proposition 209.

"The 9th Circuit has said here that the facts alleged by the plaintiffs, even if true, don't add up to a constitutional violation," he added. "If you follow this, there is no point to a trial."